(a) General rule of privilege. Every personAn individual has a
privilege to refuse to
disclose the tenor of histhe individual's vote at a political election
conducted by secret
ballot.

(b) Exceptions. The privilege under N.D.R.Ev. 506(a) does not apply if the court
finds that
the vote was cast illegally or determines that disclosure should be compelled under the
election laws of the state.

EXPLANATORY NOTE

Rule 506 was amended, effective____________.

Rule 506 is taken from the Uniform Rules of Evidence (1974)
and promotes the right of
secrecy of the ballot which is secured by Article 2, § 1291 of the Constitution of North
Dakota.

Subdivision (a)(1) states the general rule of privilege. Because the
privilege to refuse to
disclose the tenor of a secret ballot confers a benefit to the institutions of government as well
as to the individual elector, it has been argued that, as a matter of public policy, a party to
litigation should be allowed to claim error if the privilege is denied. See, e.g., the dissenting
opinion of Christianson, C.J., in Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134 at 142
(1937).

Despite this argument, it has generally been accepted that the rule is one of personal
privilege, rather than one of exclusion. The distinction is material: As a personal privilege,
the protection conferred may be waived by the holder; furthermore, it may be claimed only
by the elector. Rule 506 follows the generally accepted theory and grants a personal
privilege to refuse to disclose the tenor of one's ballot. This is in accord with the case law of
North Dakota. See Wehrung v. Ideal School District No. 10, 78 N.W.2d 68 (N.D. 1956),
Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134 (1937).

Of course, if the privilege is erroneously granted, the adverse party may object in
histhe
capacity as a litigant, but this is a claim apart from those made by the holder of the privilege.

Subdivision (b) states that if the vote was cast illegally, or if the court finds that disclosure
is proper pursuant to the election laws of this state, then this privilege does not apply. This
reaffirms the practice that has been developed and followed in this State. See Torkelson v.
Byrne, supra.